By Sean F. Darke, Esq.
As states start to lift “stay at home” orders, employers need to understand how to avoid litigation claims when bringing the workforce back to a safe environment. Employers will need to understand the dos and don’ts under the Americans with Disability Act, when it comes to performing medical exams for new hires or existing employees.
As we move forward to reopen businesses, many questions that we have received over the last several weeks are related to whether an employer can perform a medical exam on its employees prior to allowing the employee to enter the workplace. One important aspect that makes this question different, compared to the same question asked 6 months ago, is that we are currently in a pandemic. As a result, a contagion becomes more of a priority, which provides more leeway for employers to conduct medical exams. Medical exams are procedures or tests to learn an employee’s physical or mental impairment or simply their overall health. And because we are in a pandemic, the medical test of employees are “job related and consistent with business necessity” under the ADA. Obviously, during a pandemic performing medical exams to ensure employees are not infecting other employees in the workplace is paramount for the safety of all employees and continued operations. And the employer will want to make sure that its testing is reliable and implement additional procedures for possible false-negatives.
- Applicants and New Hires.
When hiring during a pandemic, an employer can certainly test an applicant for symptoms; however, the test should only be conducted after a conditional offer has been made to the applicant. If the applicant has symptoms related to COVID-19, for example, the employer takes the applicants temperature that reveals a fever, the employer has a few options. If the employer cannot postpone the hiring, i.e. 14 days recommended CDC guideline, then the employer can simply withdraw the job offer. The reason for this is because the ADA cannot interfere with the CDC guidance, which provides that individuals with COVID-19 symptoms cannot safely enter a workplace. If the employer has the option of waiting, the employer can simply delay the start date until after the applicant’s symptoms are gone. Upon return, the employer can once again perform the test for COVID-19 symptoms and if negative, allow the new hire into the workplace.
- Existing Employees.
As employers start to return employees to the workplace, it will want to create and implement temporary policies. These temporary policies should include performing medical exams on employees who are returning to the workplace. In addition, as always, an employer’s policy to perform medical exams on its current workforce during a pandemic should be applied equally to all employees. Although testing employees’ temperature before they enter the workplace has been very popular, a high temperature is only one of many symptoms of COVID-19, as provided by the CDC. Therefore, employers will want to create a checklist that contains all of COVID-19 symptoms, as described by the CDC, to make sure that its workforce is not experiencing any of the symptoms. Because COVID-19 symptoms can be associated with numerous other illnesses, if an employee has the symptoms, the employer should inform the employee to get tested for COVID-19 and return a fit for duty release from its doctor, prior to returning to work. The same goes for an employee who is diagnosed with COVID-19, the employer can requires a fit for duty release; however, with both situation, doctors and healthcare workers may be too busy to provide a fit for duty release. Therefore, employers may need to come up with other methods to obtain verification for the employee’s fitness for duty prior to allowing them access to the workplace.
- confidentiality
Employers must also understand that performing any medical exam on applicants or employees, the information must be kept confidential. And as always, the medical records being collected must be kept in separate medical files. In addition, if an employer maintains a log to track the employees who are being tested and the results, the employer must keep that information confidential as well. If an employee does test positive in the workplace, the employer will need to inform other employees who may have been exposed; however, the employees name would still need to be kept confidential. Lastly, if a staffing agency has an employee who informs the company that they have COVID-19, the staffing agency will need to inform the 3rd party client site and reveal the individuals name, so the 3rd party client can inform the necessary individuals within its organization.
As the United States continues to slowly open back up after COVID-19, employers will want to be vigilant on performing medical exams on employees. Employers will also want to continue to allow flexibility to employees during this time and set up safe guards to make sure employees feel safe as they return to work.
DISCLAIMER: This article is just a guide to point your company in the correct direction and should not be used as legal advice for your specific situation. In order to have your company’s specific situation reviewed, contact a qualified Labor and Employment attorney before relying on any commentary as each situation is unique and complex.
Sean Darke is a Partner at Litchfield Cavo’s Chicago office. He focuses his practice on business, and employment litigation, as he successfully defends businesses in all areas of business and employment laws. Most recently, Sean has been named a Leading Lawyer in the area of Employment Law Management Side by Leading Lawyers annually since 2017.
Sean can be contacted at Darke@LitchfieldCavo.com or 312.781.6554.